MIDLAND, Mich. — The proposed Water Legacy Act now being considered by the Michigan Legislature is a draconian solution in search of a problem, according to a new study by Russ Harding, a former director of the Michigan Department of Environmental Quality and a senior environmental policy analyst for the Mackinac Center for Public Policy, a Midland-based research and educational institute. In assessing the proposed legislation, which would create additional regulation of groundwater withdrawals in Michigan, Harding reviewed the status of Great Lakes water supplies, the groundwater regulation of nearby states, the requirements of international agreements and Michigan’s existing water laws. He concludes that contrary to Gov. Jennifer Granholm’s public comments, “Michigan is not a regulatory backwater,” and, “Groundwater supplies are regularly replenished and remain abundant.”

According to Harding, the proposed act would require a costly and time-consuming permit process for larger but routine withdrawals of Michigan groundwater, thereby pre-empting the longstanding rights of Michigan’s citizens, farmers and business owners to use their groundwater as long as no harm is done to the overall quantity and quality of the water supply. Harding notes in the study that a water shortage “is not the reality today, nor is it likely to be in the future given science-based forecasts.”

Harding’s study summarizes the groundwater regulation of other Great Lakes states to assess the governor’s claim that Michigan is lagging them in its protection of groundwater. He finds that the permit requirements proposed in the Water Legacy Act are not the norm, and that only Minnesota, a semiarid state, requires something similar. His review of existing laws governing water withdrawals from the Great Lakes basin also suggests that current protection of water supplies is ample, and he cites the Great Lakes Charter agreement between the eight Great Lakes states and two Canadian provinces, as well as Michigan’s 2003 Aquifer Protection and Dispute Resolution Act, which reinforces Michigan’s common-law water rights.

Harding’s assessment of the Water Legacy Act suggests it is overbroad, allowing the Michigan Department of Environmental Quality “virtually unlimited discretion in permit decisions” and “a full six months to process each permit application.” This power would be granted even though, “Notably lacking from the (proposal) are the scientific underpinnings so necessary for sound policy.” Harding notes that an ongoing, state-sponsored groundwater mapping survey is expected to be completed in a few months, and he observes, “Lawmakers should delay consideration of the governor’s proposal until the (survey) council reports its findings.”

The potential threat, in Harding’s view, is that the Water Legacy Act would unnecessarily sap resources from other environmental concerns, such as the proliferation of exotic species, while needlessly impairing Michigan’s “parched business climate,” which “has been induced, in part, by onerous regulation.” In contrast, the threat of a depleted Great Lakes basin is not realistic, he observes. Harding cites findings that, “Withdrawals and consumption of Great Lakes water actually have decreased by 48 percent in the past two decades,” and that, “Human effects on lake levels have been relatively small compared to the changes caused by natural factors” like precipitation and temperature. He also notes, “There’s little likelihood that large diversions (of Great Lakes water) will become feasible in the foreseeable future,” given the enormous costs, existing regulatory obstacles and problems of legal right-of-way that would attend such projects.

The study recommends tabling the proposed act; reviewing the results of the state’s groundwater mapping survey before considering any new legislation; and continuing funding of the Aquifer Protection and Dispute Resolution Act. The study, titled "Groundwater Regulation: An Assessment," can be viewed at www.mackinac.org/7063.